A Litigator's Guide to the Universe

The Guide to Pre-Trial Jury Selection Discussions with Your Judge

By Thomas M. O’Toole, Ph.D.

Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.

Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past.

Failure to communicate with the judge in advance of trial has three important consequences:

1. It makes it very difficult to develop an effective jury selection strategy when the process is unknown. Jury selection processes vary (sometimes significantly) from judge to judge. It is important to the jury selection strategy development to understand which process your judge will use.

2. It can result in an attorney looking unprepared at trial when he or she realizes that the process is not consistent with his or her expectations. As a minor example, the first attorney in voir dire might challenge a juror for cause in open court only to quickly find out that the judge wants all challenges made in private. This attorney now looks potentially disorganized and unprepared and will be the only attorney in the courtroom who challenged a venire member’s ability to be fair.

3. It can lead to disastrous results. A common example of this is a situation where an attorney passes on a peremptory challenge only to learn after the fact that he or she lost the peremptory challenge as a result of passing. Now an adverse juror is stepping into the box and he or she is out of peremptory challenges.

This list is by no means exhaustive. Other problems may arise as well. Fortunately, there is a simple solution: Discuss the process in advance with the judge. It will make you appear more organized in the judge’s eyes, which is always a plus, and will provide you with the information you need to effectively navigate the jury selection process. As you prepare for this discussion with the judge, here are the questions about the process that you should consider asking:

1. How many jurors will the judge seat? This seems like a simple question, but it varies from venue to venue and I have seen attorneys get this one wrong.

2. How much voir dire time will each party get? Will the voir dire time for each party be broken up into alternating blocks? Can the parties divide up their time into these blocks however they want or does the judge want it evenly divided?

3. Who can the attorneys voir dire? Many judges allow attorneys to voir dire the entire venire. Some judges prefer attorneys only voir dire those jurors in the box and wait until new jurors enter the box to question them.

4. Are there limitations on the types of questions that can be asked in voir dire? While rare, I have seen judges who prefer that attorneys only ask venire members about their personal experiences and do not allow attorneys to ask about attitudes and beliefs.

5. How many alternates will there be?

6. How many peremptory strikes will each side receive?

7. If there are multiple defendants, do they have to share peremptory strikes or does each individual defendant get its own set of strikes?

8. How will each side exercise its peremptory strikes? Will they go back and forth and each exercise them one at a time? Or will both sides write down their strikes on a piece of paper and turn them in, which means they would not know who the other side is striking? This latter practice also means that a strike is wasted if both parties strike the same person.

9. Are there separate peremptory strikes for the alternates? If so, how many and when will they be exercised?

10. If one side passes on a peremptory strike, do they lose that strike? Sometimes the party loses the strike. Sometimes, they retain the strike, but can only exercise it on jurors coming into the box.

11. Will the parties know who the alternates are in advance? Sometime, the judge will tell the parties which seat numbers will constitute the alternates without telling the actual jurors who the alternates will be. Sometimes, the judge prefers to draw numbers at the end of trial to determine who are the alternates.

12. Will the alternates deliberate? At the end of trial, some judges will make the alternates actual jurors (even when no other juror has been lost) and have them deliberate.

13. How will the jurors who are struck from the box be replaced? The most common way is for the next juror out of the box to take the place of the removed juror (i.e. juror 15 steps in and takes the place of juror #2). However, I have seen judges randomly replace removed jurors (i.e. #37 is drawn from a hat and steps into the #2 seat). I have also seen judges say the jury will be the first 14 jurors remaining at the end of the process. In other words, the way the jurors are seated in the box during voir dire has no effect on the juror numbers for the actual trial. This latter practice makes a difference because it potentially changes who the alternates are, which could lead the trial team to reconsider how they want to use their limited peremptory strikes.

14. Should cause challenges be made in open court?

15. Can the parties have 5 minutes to confer at the end of voir dire before exercising their peremptory strikes? Most judges allow this, but I have seen a few instances where the judge wanted the parties to immediately exercise their peremptory strikes with no discussion about all of the information that was just obtained during voir dire.

16. When will the judge ask about hardship requests and grant or deny them? This usually happens before voir dire, but I have seen instances where judges asked about hardships, but then re-addressed the issue again after voir dire, which impacts the makeup of the panel.

17. Will the judge allow a supplemental juror questionnaire for venire members to complete before the start of voir dire?

On a final note, many judges are open to suggestions by each side. Consequently, if there is a process that you prefer or believe would be helpful, suggest it to the judge. Additionally, as with many other issues at trial, if you can reach agreement with the other side before presenting the suggestions to the judge, it increases your likelihood of the judge accepting them.